2021 (9) TMI 9 - Tri - Companies Law

Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT - The applicants having already filed the consent letters from the respective secured creditors under their respective official letter heads had failed to comply with the required provisions of Section 230(9) of the Companies Act 2013 which states that the Tribunal may dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety per cent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. The scheme is approved - application allowed.

Summary

Issues:
1. Sanction of Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013.
2. Rectification of Order passed by NCLT Kolkata Bench on 12.10.2018 regarding the meeting of secured and unsecured creditors.
3. Compliance with Section 230(9) of the Companies Act, 2013 in relation to consent of creditors.

Analysis:

1. Sanction of Scheme of Amalgamation:
The Tribunal was approached for sanctioning a Scheme of Amalgamation between HINDUSTHAN TECHNOLOGIES PRIVATE LIMITED (Transferee Company) and SEEMIYETIC REFRACTORIES PRIVATE LIMITED (Transferor Company) under Sections 230 to 232 of the Companies Act, 2013. Both companies had approved the Scheme through Board Resolutions and sought Tribunal's approval.

2. Rectification of Order Regarding Creditors' Meeting:
Initially, the NCLT Kolkata Bench had directed separate meetings of secured and unsecured creditors of both companies. However, an application was filed for rectification before the Cuttack Bench, seeking to dispense with these meetings based on the consent obtained from the creditors. The Tribunal noted that the consent letters from secured creditors were not in the prescribed form of an affidavit as required by the Companies Act, 2013.

3. Compliance with Section 230(9) of the Companies Act, 2013:
The Tribunal observed that the applicants had failed to comply with the provisions of Section 230(9) which allow dispensing with creditor meetings if at least ninety per cent value of creditors agree and confirm, by way of affidavit, to the scheme. Subsequently, the Tribunal directed the applicants to furnish the required affidavits of consent from secured creditors within a specified timeframe, which was duly submitted.

In the final order, the Tribunal rectified the previous order to dispense with the meetings of secured and unsecured creditors based on the specific consent provided by affidavits from the creditors. The Registry was instructed to inform all concerned parties about this decision and take necessary steps. The application was disposed of accordingly, ensuring compliance with the Companies Act, 2013 and rectifying the earlier order for creditor meetings.